Parents of juvenile offender could not be ordered to submit to drug test as
a condition of their daughter's probation.[Idaho v. Doe](10-4-2)

On June 1, 2010, the Idaho Supreme Court held that it was a violation of the
Fourth Amendment for a magistrate to require parents to involuntarily submit to
random urinalysis drug tests as a condition of their daughter's probation.

Facts:On September 26, 2005, John and Jane Doe, Appellants, appeared
without an attorney in magistrate court with their minor daughter, who, with the
consent of her parents, signed a written admission to two counts of petit theft.
At the disposition hearing the following month, the magistrate found the Does'
daughter to be under the purview of the Juvenile Corrections Act (JCA) and
imposed informal probation on her for her offenses. Because a social
investigation revealed that the Does had a history of drug abuse and that Jane
was on probation for possession of marijuana drug paraphernalia, the magistrate
questioned the Does about their use of controlled substances. Jane admitted to
the magistrate that she used methamphetamine before having her children and had
continued to smoke marijuana until she was caught with paraphernalia sometime
prior to the events in this case. The magistrate consequently required both
John and Jane to undergo random drug urinalyses as a term of their daughter's
probation. John subsequently signed two written admissions to smoking marijuana
on separate occasions shortly after the probation terms were imposed. Jane
signed a similar written admission to using marijuana after the terms had been
imposed. Both of the Does also submitted urine samples that tested positive for
THC. Additionally, the Does' daughter was found to have violated the terms of
her probation for various reasons. The Does obtained counsel for the Order to
Show Cause Hearing to determine whether to revoke their daughter's informal
probation and to hold them in contempt for their drug use. Although the Does
both tested positive for THC at the Order to Show Cause Hearing, the State moved
to withdraw the contempt action because the Does were complying with the order
to submit to urinalysis testing.

At the Disposition Hearing, the magistrate placed the Does' daughter on
formal probation and imposed terms requiring the Does to submit to random urine
testing and not to violate controlled-substance laws. The disposition order
admonished the Does that they could be subject to contempt proceedings if they
disobeyed the order.2 The Does refused to sign the order. Based in part on the
juvenile probation officer's report that the Does were using marijuana in front
of their daughter, the magistrate also expanded the JCA proceedings into a Child
Protection Act proceeding. These proceedings were ultimately dismissed based
on contradictory evidence. The Does appealed their probation terms to the
district court, arguing that the magistrate lacked statutory authority under I.C.
Ãƒâ€šÂ§ 20-520(1)(i) to require them to submit to random urinalyses and that, even if
statutory authority existed, such terms violated the U.S. Constitution. The
district court affirmed the magistrate's order, but the Idaho Court of Appeals
vacated, finding that although the magistrate court acted within its statutory
capacity, it nonetheless violated the Fourth Amendment by imposing the
urinalysis requirement. This Court granted the State's petition for review.

The order stated: NOTICE TO PARENT, GUARDIAN OR CUSTODIAN: The parent,
guardian or custodian shall assist in the compliance with the terms herein and
shall immediately notify the Probation Department of any violation(s) of this
order. Any parent, guardian or custodian violating any order of the Court under
the provisions of the Juvenile Corrections Act shall be subject to contempt
proceedings.

Held:District court's decision affirming the magistrate is reversed,
probation order is vacated.

Opinion:Because it intrudes on bodily privacy, requiring parents to
provide urine samples is a search within the meaning of the Fourth Amendment. Skinner
v. Ry. Labor Executives' Ass'n , 489 U.S. 602, 617, 109 S. Ct. 1402, 1413
(1989). To satisfy the Constitution, any search by a government actor must be
reasonable. United States v. Sharpe , 470 U.S. 675, 682, 105 S. Ct.
1568, 1573 (1985). A reasonable search requires a warrant supported by probable
cause unless a recognized exception applies. State v. Smith , 144 Idaho
482, 485, 163 P.3d 1194, 1197 (2007). There is a well-recognized exception for
instances where there is a special need for a search beyond the normal need
for law enforcement that makes the warrant process impracticable. Skinner
, 489 U.S. at 619, 109 S. Ct. at 1414. Whether a special need exempts the
search procedure from the warrant requirement is determined by balancing the
intrusion on the individual's Fourth Amendment interests against the State's
legitimate interests. Delaware v.Prouse , 440 U.S. 648, 654, 99
S. Ct. 1391, 1396 (1979). The first step is to gauge the weight and nature of
the privacy interest at stake. Bd. ofEduc. v. Earls , 536 U.S.
822, 830, 122 S. Ct. 2559, 2565 (2002). In some situations, the individual
might have a diminished or nonexistent expectation of personal privacy because
he or she is in the care of the State, such as a child in public school. See
New Jersey v. T.L.O. , 469 U.S. 325, 339-40; 105 S. Ct. 733, 741-42 (1985)
(noting that students have a lower expectation of privacy) . The U.S. Supreme
Court has also upheld suspicionless drug testing when conditioned on a benefit
like obtaining a job in a highly sensitive position, for example those dealing
with public safety, law enforcement, or drug interdiction. See Nat'l
Treasury EmployeesUnion v. Von Raab , 489 U.S. 656, 672, 109 S. Ct.
1384, 1394 (1989) (stating that U.S. Customs employees working in contraband
interdiction have a diminished expectation of privacy with respect to urine
tests). It goes without saying that since the Does are adults, the State has no
stewardship over them that would justify asserting a greater scope of authority.
They have not voluntarily submitted to the State's custody or oversight.
Similarly, the Does are not seeking any benefit, such as employment, that would
ordinarily subject them to enhanced government oversight. Although the State has
a compelling interest in ensuring the well-being of Idaho's children, the Does
themselves are not subject to lesser Fourth Amendment protections in their
persons merely by virtue of the fact that their daughter has committed a crime.
More relevant here is that those who have been convicted of a criminal offense,
such as parolees and prison inmates, can also be subject to greater levels of
State intrusion. See Hudsonv. Palmer , 468 U.S. 517, 527, 104 S.
Ct. 3194, 3201 (1984) (A right of privacy in traditional Fourth Amendment terms
is fundamentally incompatible with the close and continual surveillance of
inmates and their cells . . . .); Morrissey v. Brewer , 408 U.S. 471,
482, 92 S. Ct. 2593, 2601 (1972) (stating that parolees can be subject to
restrictions that would be unconstitutional when applied to the general
population). Specifically, it is well established that probationers have a
lower expectation of privacy and liberty. Griffin v. Wisconsin , 483
U.S. 868, 874, 107 S. Ct. 3164, 3169 (1987) ; State v. Gawron , 112 Idaho
841, 843, 736 P.2d 1295, 1297 (1987) .

Although the Does' daughter is on probation, it does not necessarily follow
that they themselves are subject to a diminished expectation of privacy in their
bodily fluids. Parolees, probationers, and indeed all criminal offenders are on
a continuum of state-imposed punishments. Samson
v. California , 547 U.S. 843, 850, 126 S. Ct. 2193, 2198 (2006) (quotations
omitted). The probationer can expect to be supervised by the State on the
theory that the probationer, as a recent offender, is more likely than the
ordinary citizen to violate the law. United States v. Knights , 534
U.S. 112, 119-20, 122 S. Ct. 587, 591-92 (2001). However, this theory only
applies to offendersÃƒÂ¢â€šÂ¬probation, parole, and other criminal sanctions can only be
imposed on individuals after verdict, finding, or plea of guilty. Griffin
, 483 at 874, 107 S. Ct. at 3168.

It is for this reason that the Ninth Circuit has found unconstitutional home
urine testing

for people released pending trial, reasoning that they have not yet suffered
judicial abridgment of their constitutional
rights. United States v. Scott , 450 F.3d 863, 872 (9th Cir.
2006). The Does have not been adjudicated guilty of any drug crime, nor has
any neutral magistrate formally issued a warrant based on probable cause for
such a criminal investigation. State v. Nunez , 138 Idaho 636, 642, 67
P.3d 831, 837 (2003) (citing United States v. Leon , 468 U.S. 897, 914,
104 S. Ct. 3405, 3416 (1984)). The Does are presumed innocent and are
therefore not located anywhere on the continuum of state-imposed punishments.
Aside from pointing to the possibility in their daughter's presentence social
investigation that the Does abused drugs, the State has not overcome any formal
procedural safeguards to diminish the Does' Fourth Amendment rights in their
bodies. The Does therefore retain the full measure of Fourth Amendment
privacy.

The next step is to measure the intrusiveness of the search at issue. Earls
, 536 U. S. at 832, 122 S. Ct. at 2566. Although a urine test does not
physically invade a person's body, it necessarily requires the Does to perform
an excretory function traditionally shielded by great privacy. Skinner
, 489 U.S. at 626, 109 S. Ct. at 1418. However,
the degree of intrusion depends upon the manner in which production of the
urine sample is monitored, as well as the information it discloses concerning
the state of the subject's body, and the materials he has ingested. Vernonia
Sch. Dist. 47J v. Acton , 515 U.S. 646, 657, 115 S. Ct. 2386, 2393 (1995).
Neither the parties, nor the record, offer any details about how the urine tests
in this case are administered, such as whether the samples are provided in a
private room, and whether the Does are visually or aurally monitored while
urinating, or both. The record also is not clear about what drugs or compounds
the urine test detects, although presumably the test only identifies controlled
substances. Without more information, this Court cannot determine how intrusive
the urine testing is.

Last, the Court must determine whether the State has a sufficient reason to
require the urine tests. Where the test subject has a full expectation of
Fourth Amendment privacy, as do the Does in this case,
the proffered special need for drug testing must
be substantialÃƒÂ¢â€šÂ¬important enough to override the individual's acknowledged
privacy interest, sufficiently vital to suppress the Fourth Amendment's normal
requirement of individualized suspicion. Chandler v. Miller , 4
Because the search at issue here is of the Does' persons, specifically their
bodily fluids, this opinion does not address situations in which police search
an area controlled in common by a probationer and others not under the State's
supervision. See State v. Barker , 136 Idaho 728, 731-32, 40 P.3d 86,
89-90 (2002) (upholding a warrantless search of the common areas in an apartment
occupied by a parolee and another person).

8 520 U.S. 305, 318, 117 S. Ct. 1295, 1303 (1997). A demonstrated problem
of drug abuse, while not in all cases necessary to the validity of a testing
regime, can help support a warrantless testing program. Id. at 319, 117
S. Ct. at 1303.

Here, neither party disputes the fact that protecting the welfare of children
and rehabilitating child offenders are among the most laudatory of State
interests. Moreover, voluntary involvement of a
parent in the rehabilitation of his or her child likely has a salutary effect.
State v. Watkins , 143 Idaho 217, 221, 141 P.3d 1086, 1090
(2006). The magistrate also acted upon individualized suspicion available in
the child's social investigation indicating that the Does might be using drugs
at home. However, even where a substantial State interest exists, this Court
will not uphold a search whose primary purpose is ultimately indistinguishable
from the general interest in crime control. City of Indianapolis v. Edmond
, 531 U.S. 32, 44, 121 S. Ct. 447, 455 (2000) . In Ferguson v. City of
Charleston , a hospital devised a program in which it tested pregnant
patients for cocaine if they showed one among a list of medical indicators and
then sent positive results to the authorities. 532 U.S. 67, 72, 121 S. Ct.
1281, 1285 (2001). Even though the patients were only tested if the hospital
suspected cocaine use and they could avoid arrest by consenting to substance
abuse treatment, the Court found that the practice was impermissible because it
was primarily geared toward law enforcement. Id. at 81, 121 S. Ct. at
1290. Just like the testing program in Ferguson , testing in this case is
characterized by a general interest in law enforcement. The magistrate imposed
the urinalysis requirement during juvenile delinquency proceedings under the JCA,
which are quasi-criminal in nature. See I.C. Ãƒâ€šÂ§ 20-508 (allowing courts
to waive jurisdiction under the JCA so that the juvenile may be transferred to
adult criminal proceedings). The magistrate's order requires the Does to
report to their daughter's probation officer, who is an officer of the county
required by law to enforce probation conditions. Id. Ãƒâ€šÂ§Ãƒâ€šÂ§ 20-529,
-533(3). Nothing prevented the probation officer from conveying the Does' test
results to law enforcement. Their failure to comply could result in contempt
sanctions, which would be brought and pursued by the prosecuting attorney.
Indeed, the juvenile probation officer in this case reported the parents'
positive urinalysis results to the prosecutor. It also appears that such
evidence could be used to obtain search warrants against the Does and would be
admissible against the Does in further criminal proceedings for encouraging
their daughter's delinquency. See id. Ãƒâ€šÂ§ 20-526 (punishing anyone
who by any act or neglect encourages, aids or
causes a juvenile to come within the purview or jurisdiction of [the JCA]).

The State contends that the goal here is primarily to rehabilitate the minor,
not to enforce criminal sanctions. The U.S. Supreme Court dealt with a similar
argument in Ferguson : While the ultimate goal of the program may well
have been to get the women in question into substance abuse treatment and off of
drugs, the immediate objective of the searches was to generate evidence for law
enforcement purposes in order to reach that goal. . . . Because law enforcement
involvement always serves some broader social purpose or objective, under [the
State's] view, virtually any nonconsensual suspicionless search could be
immunized under the special needs doctrine by defining the search solely in
terms of its ultimate, rather than immediate, purpose. Ferguson , 532
U.S.at 82-84, 121 S. Ct. at 1291-92. This reasoning applies equally to
the Does. Just as the urine-test requirement in Ferguson was intended to
protect the health of unborn fetuses by detecting prenatal cocaine use, the drug
testing here is intended to ensure the Does' daughter's rehabilitation by
detecting drug use at home. The immediate method for attaining the goals in
both cases is to report the drug use for criminal sanctions. In response, the
State also argues that the urine testing does not further the interests of law
enforcement because the Does would only be held in contempt of court for
refusing to comply.

The State reasons, without authority, that contempt is not a criminal
sanction, but rather is merely a civil power exercised by the judiciary. It is,
of course, true that the judiciary's power to hold individuals in contempt flows
from its inherent authority and is not conveyed by statute. McDougall v.
Sheridan , 23 Idaho 191, 222-23, 128 P. 954, 964-65 (1913). But the
State's assertion that the contempt proceedings in this case cannot be criminal
in nature is simply wrong. The magistrate has the power to impose a fine of up
to $5000 and to imprison the contemnor for up to five days. I.C. Ãƒâ€šÂ§ 7-610;
see also id. Ãƒâ€šÂ§ 20-520(5) (stating that ordinary contempt proceedings apply
when parents violate juvenile probation orders). Punishing the Does for failing
their urinalyses or for refusing to undergo the test could in either case
involve a determinate fine or determinate jail sentence, both of which are
criminal-contempt penalties. Camp v. East Fork Ditch Co. , 137 Idaho
850, 865, 55 P.3d 304, 319 (2002). [C]onvictions
for criminal contempt are indistinguishable from ordinary criminal convictions,
for their impact on the individual defendant is the same. Bloom v.
Illinois , 391 U.S. 194, 201, 88 S. Ct. 1477, 1482 (1968). Criminal
contempt cannot be imposed on an individual absent virtually all the ordinary
protections afforded by the U.S. Constitution. Hicksv. Feiock ,
485 U.S. 624, 632, 108 S. Ct. 1423, 1429-30 (1988); Camp , 137 Idaho at
860-61, 55 P.3d at 314-15. This specifically includes the Exclusionary Rule's
protection against Fourth Amendment violations. Dyke v. Taylor Implement
Mfg. Co. , 391 U.S. 216, 222, 88 S. Ct. 1472, 1476 (1968). Criminal
contempt is therefore just like any other criminal sanction.

In summary, the magistrate's order requiring the Does to undergo urinalysis
testing constituted a search under the Fourth Amendment of the U.S. Constitution
that is presumptively invalid absent a warrant. The intrusion is not
extraordinarily invasive, but the Does do not have a diminished expectation of
privacy in their bodies simply because their daughter is on juvenile probation.
The search is therefore unconstitutional because it primarily furthers the
State's interest in law enforcement.

Conclusion:Although the magistrate had the statutory power to require
the Does to undergo urinalysis testing as a condition of their daughter's
juvenile probation, such a term is unconstitutional under the Fourth Amendment
of the U.S. Constitution. The district court's decision affirming the
magistrate is reversed and the probation order is vacated.